3.3: Fair Use

The average person knows few details about copyright law, but one thing most people seem to be aware of is the concept of “fair use,” because it comes up frequently when those accused of copyright infringement (or afraid of being accused of infringement) explain why they believe their behavior to be permissible. What most people do not realize, however, is that “fair use” is not a set of rules or bright-line guidelines for avoiding a copyright infringement claim. Rather, fair use is a set of four factors in a balancing test that can be asserted as a defense after an infringement claim has been made. Fair use cannot be used as a shield against copyright infringement claims, but rather must be argued as a defense to those claims in court.

The fair use test developed by judges trying to decide copyright infringement cases, and was thus a principle derived from case law (rather than statute). In the Copyright Act of 1976, however, the four-factor fair use test was codified into statutory law, giving it greater clarity and certainty. But despite now being part of the copyright statute, fair use is still only a defense after a claim of infringement has been made — it cannot be relied upon as an automatic shield to ward off infringement claims.

The Four Factors of Fair Use:

The four factors that will be weighed by the courts to determine whether a defendant’s copying of preexisting material constitutes “fair use” are as follows:

1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Before we dive deeper into each of these four factors, there are three important aspects to this test to understand.

First, we need to remember that this is a “balancing test.” This means that no specific formula exists to determine whether the threshold between unfair and fair use has been crossed. Each case of potential fair use will be decided based on the specific facts of that case. In some cases, one of the four factors may prove dispositive, while in other cases one of the other factors may be the tipping point. Any combination of evidence and any proportion of evidence among the four factors may constitute fair use. The outcome of the test constitutes a factual determination resting with the jury, not a threshold legal issue to be decided by the judge.

Second, because defendants must raise fair use as a defense, it must be asserted and proved to the jury by the defendant rather than plaintiff. In other words, unlike most other matters in a civil case, the defendant has the burden of proof in showing that the infringement constitutes fair use.

Third, the fair use balancing test need not be limited to these four factors. If a court finds there is another factor that weighs in favor of the defendant (such as good faith), the defendant may be able to present evidence of that “fifth” factor even though it is not included in the factors listed in the statute.

Here is a summary of how these four factors of fair use come into play during a musical work copyright infringement case:

Purpose and character of the use.

The purpose and character factor in the fair use test allows the defendant to argue that their use of the plaintiff’s copyrighted work is for a purpose or has a particular character such that holding the defendant liable for copyright infringement would needlessly stifle creativity or work against a countervailing public purpose. Examples of purposes and characters that have successfully been used by defendants as a fair use defense against infringement liability include parody, criticism, commentary, educational use, charitable (nonprofit) use, and “transformative” uses where the new work takes on a new character separate from that in the original work.

One of the most significant and recent court cases showing a successful application of the “purpose and character” factor in a fair use defense occurred in Campbell v. Acuff-Rose Music, Inc., decided by the United States Supreme Court in 1994. This case involved alleged copyright infringement by the rap group 2 Live Crew, with the plaintiff claiming that 2 Live Crew’s 1989 song “Pretty Woman” infringed upon the copyright of the well-known 1964 song “Oh, Pretty Woman” written by famed pop-country singer, Roy Orbison.

The case is titled Campbell v. Acuff-Rose, Inc. because Luther Campbell was one of the members of 2 Live Crew and was listed first among the multiple defendants in the complaint, and Acuff-Rose is the name of the publishing company, one of Nashville’s most powerful, that owns the copyright to the Orbison song. Although Acuff-Rose was the plaintiff in the original complaint, in this appeal of a 6th Circuit Court decision, 2 Live Crew is the “petitioner” asking the Supreme Court to overturn the 6th Circuit’s decision, and the petitioner’s name comes first (before the “versus”) even though they are the defendant. Note that the 6th Circuit includes the city of Nashville, Tennessee, the center of the country music industry.

2 Live Crew’s “Pretty Woman” clearly copies Orbison’s song without permission (the musical material is not just substantially similar, but nearly identical), but the song also just as clearly represents an intentional parody of the original, making fun of the lyrics and the sentiment of the original song in a crude fashion. The District Court in this case had no trouble agreeing with the defendant that their song is a parody and thus might be considered a fair use under the “purpose and character” clause. However, the District Court and the 6th Circuit Court of Appeal were split on the question of whether the clearly commercial nature of 2 Live Crew’s = song outweighs the public policy of supporting fair use for parodies. 2 Live Crew’s album on which this song appeared sold over 250,000 units, so its commercial nature could not be disputed. This case thus pits two of the elements of the purpose and character clause against each other: parody vs. commercial character.

In determining whether the commercial nature of a work prevents a fair use defense, courts have looked at whether the new work could negatively affect the market for the original song. Would consumers potentially purchase the new work instead of the original work, thus damaging the market for the original? In this case, the Supreme Court found that the parody of “Oh, Pretty Woman” was of such a different character to the original (which was already established as a “classic”) that it could not possibly affect the market for the original. Nobody would choose to listen to the crude and rapped parody when what they had in mind was Orbison’s original. The Supreme Court’s ruling affirmed that the commercial nature of a work, although important in weighing the factors in a fair use test, does not itself make a fair use defense impossible. The court held that even if a use is commercial, another characteristic of the work, such as parody, may be so important and so clear that the fair use defense can overcome the commercial character of the work.

Nature of Copyrighted Work.

The second of the four fair use factors weighs the nature of the original, copyrighted work that has allegedly been copied. The distinction most often drawn in this factor is that between works that are informational in nature versus those that are fictional or made primarily for entertainment. If the work is informational and factual, such as a biography or encyclopedia article, then this will tend to support a finding of fair use as compared to when a work is primarily intended for entertainment. This distinction, and this second factor in general, rarely comes into play in cases involving copyrighted musical works, which are nearly always created for purposes of entertainment.

Amount of Copyrighted Work Used.

The amount of the original work copied by the defendant will also factor into whether the fair use defense is successful. There are several obvious examples of this intuitive principal. For example, if a teacher copies an entire novel for her class to use, rather than having them purchase the book, the fact that she is doing this for educational purposes would be far outweighed by the amount of the copying and the fair use defense would be unsuccessful. But how much is too much? Despite what many people may believe, there are no hard and fast rules and this factor will be balanced against the other three based on the specific facts of each case.

The court will also consider the quality of the material copied in relation to the proportion of the whole work that is copied. If the material copied from the original is less central to the unique character of the original work, then the court may allow for more to be copied. On the other hand, if the copied material is critical to the unique or original character of the original, then only a small portion may prevent the fair use defense.

In the 2 Live Crew case discussed above with respect to the “purpose and character” factor, the court also looked intently at the question of how much of Roy Orbison’s song the rap group had copied in their parody. The Supreme Court noted that in order to prevail on a fair use defense, a parodist should only copy as much of the original work as may be required to make their parody effective. If an excessive amount of the song is copied, more than necessary to make the parody effective, the parodist risks losing the fair use defense. In the case of 2 Live Crew, the court held that, even though the rap group had copied the “heart” of Orbison’s song, the distinctive rising bass guitar riff that is the song’s primary musical feature, that amount of copying was necessary to clearly identify which song was the object of the parody and did not thus block the fair use defense. Again, the context and specific facts of each case will determine the outcome in this and the other fair use factors, rather than any bright-line rules or guidelines.

Effect on the Potential Market of the Original Work.

The last of the four factors considers the effect the defendant’s work will have on the market for the plaintiff’s copyrighted work. If the defendant’s work diminishes the potential sales of the plaintiff’s work, then this fact would weigh against defendant’s fair use defense. If the defendant does not plan to widely market their work or even sell it commercially at all, such is in an educational setting, the defendant will likely prevail on the fair use defense. On the other hand, if the potential consumers of the plaintiff’s work might overlap with the potential consumers of the defendant’s work because they both make similar sorts of music and the copied work is very similar to the plaintiff’s, even if it is a parody or some other “fair use,” then the defendant might lose their defense due to the impact it would have on the market for the plaintiff’s work.

The mere fact that the defendant profits from their copying of the plaintiff’s work (rather than a nonprofit use such as education) does not in itself disqualify the defendant from claiming fair use and does not automatically point to a potential diminishment of the market for the plaintiff’s work. Rather, the court will take into consideration the different market niches the two works might inhabit. In the 2 Live Crew case, the defendant’s rap parody, although commercially very successful, clearly appeals to a very different market than Roy Orbison’s original song. Very little, if any, overlap exists between the classic rock or country pop market for Roy Orbison and the market for 2 Live Crew’s raunchy ‘90s rap. We would have a hard time imagining that someone who wants to listen to Orbison’s classic song would be satisfied by instead listening to 2 Live Crew’s parody of it. So, in some cases, the application of this factor will require more than a simple finding that defendant’s musical work will be profitable.

In making this determination in parody cases, courts will sometimes refer to the “likelihood of confusion” between the two works. If the defendant’s work is so similar to the plaintiff’s that a consumer might become confused as to which is the original, then there is a greater likelihood that the defendant’s fair use defense will fail because the copied song might have a negative effect on the potential market for the original.

Fair Use and “Weird Al” Yankovich

Nearly everybody who listens to much pop music has heard the brilliant and successful parodies created by “Weird Al” Yankovich, which date back to 1976 and include parodies of such artists as Michael Jackson (“Eat It”), Imagine Dragons (“Inactive”), and Madonna (“Like a Surgeon”). In many cases, Weird Al’s parodies have sold nearly as well as the chart-topping hits they parody! Weird Al’s parody songs would seem to be an excellent example of a creative musician using the fair use defense to its best advantage: his parodies substantially copy the copyrighted songs they are meant to parody, and there is no question he would be liable for infringement if it were not for the fair use defense. Weird Al copies songs quite clearly for comedic effect, with clever changes of lyrics and song titles. Despite his faithful recreations of the musical fabric of the songs, nobody would mistake his parodies for the originals once he starts singing the altered lyrics in his quirky voice.

However, Weird Al has never had to avail himself of the fair use defense for his parodies because he has never been accused of copyright infringement. The reason for this is because Weird Al has always asked for permission from the original song’s copyright owner before making his parodies, and he does not make them if that permission is refused. Weird Al also offers either a flat-rate, one-time fee to obtain a license from the copyright owner and/or a share in future royalties in his parody songs. So, even though he would likely win on a fair use defense, Weird Al wisely chooses to avoid the legal costs and bad publicity of having to make that defense in court, instead obtaining licenses for his parodies. Everybody wins, except those who deny him permission because they stand to lose a significant amount of money given the success of his recordings.

Interestingly, 2 Live Crew also asked permission to make their parody of Roy Orbison’s “Oh, Pretty Woman,” but that permission was denied. Given the raunchy and irreverent nature of 2 Live Crew’s parody, we can imagine why Acuff-Rose publishing did not want to give permission. But 2 Live Crew went ahead and made their parody anyway. Although it was a very long legal struggle, 2 Live Crew eventually prevailed in their claim of fair use and made legal history in the process by defining the limits of the fair use doctrine when applied to music parodies.